Hate speech: If remarks are made with a smile, there is no criminality, says Delhi High Court

Speeches given during elections are different that those made during ordinary times as politicians try to create an atmosphere in their rallies without having any particular intention, the Delhi High Court said on Friday in a case related to alleged hate speeches, reported Live Law.

“In the election speech, so many things are said by the politicians to politicians and that is also a wrong thing,” the High Court said. “But I have to see the criminality of the act. If you’re saying something with a smile then there is no criminality. If you’re saying something offensive, then definitely [there is criminality].”

It added: “You have to check and balance. Otherwise, I think 1,000 FIRs may be lodged against all politicians during elections.”

Justice Chandra Dhari Singh made the statement while reserving its verdict on a petition filed by Communist Party of India leaders Brinda Karat and KM Tiwari.

They have challenged a trial court order that rejected their plea for registering first information reports against Bharatiya Janata Party leaders Anurag Thakur and Parvesh Verma for allegedly making hate speeches ahead of the 2020 Delhi riots.

At a rally in January 2020, Thakur was heard shouting “desh ke gaddaron ko” and the crowd responded with “goli maaro saalon ko”. The slogan meant “shoot the traitors”, with an expletive used for “traitors” being a reference to those protesting against the Citizenship Amendment Act.

In his speech, Parvesh Verma had told an audience that the “lakhs of protestors” who have gathered at Delhi’s Shaheen Bagh would enter their homes to “rape their sisters and daughters and kill them”.

The speeches were made ahead of the 2020 Delhi Assembly elections. Soon after, riots had broken out in North East Delhi in February, in which 53 people died and hundreds were injured. The majority of victims were Muslim.

In her petition, Karat had alleged that the speeches threatened use of force to remove protestors who were protesting at Shaheen Bagh against the Citizenship Amendment Act and to promote enmity towards Muslims by portraying them as invaders who will enter houses and rape and kill people.

At Friday’s hearing, the judge asked if the speeches were made where agitations against CAA were being held. He said that the use of term “ye log” (these people) in the speeches could be anybody and do not refer to any particular community.

“How you can translate or think about this?” Singh said. “There is no direct instigation.”

Advocate Adit S Pujari, appearing for the petitioners, told the High Court that when the speeches were made, protests were being held at Delhi’s Shaheen Bagh, Jamia Milia Islamia University and other places.

He argued that the insinuations made by the two politicians in their statements clearly pointed out to the protestors, especially against Muslims.

The court asked if the protestors were Muslims. Pujari said that the BJP leaders had tried to show that only Muslims were participating in the protests.

The judge then asked if the protests were supported by members of other religious communities too, how can the petitioners say that the speeches were “given by two gentlemen for the purpose of only one community”.

Advocate Tara Narula, also appearing for the petitioners, replied that the use of words “ye log” in the speech clearly showed that the BJP leaders were categorising people.

The High Court then asked the petitioners’ counsel if the speeches in question were made during the election time. The advocated submitted the voting for Delhi election was held in February.

The court said that it was important to note that when the speeches were made and what was the intention behind it.

“Only intention to win the election or intention to instigate the public to do the crime both are different things,” the judge said. “Then you have to see the mens rea [criminal intent].”